NUCLEAR MANAGEMENT AND RESOURCES COUNCIL, INC., PETITIONER V.
PUBLIC CITIZEN, ET AL.
No. 90-360
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The District Of Columbia Circuit
Brief For The Federal Respondents
TABLE OF CONTENTS
Questions Presented
Opinions below
Jurisdiction
Statement
Discussion
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-23a) is reported
at 901 F.2d 147. The orders of the court of appeals denying petitions
for rehearing and suggestions for rehearing en banc (Pet. App. 24a,
25a-26a) are unreported.
JURISDICTION
The judgment of the court of appeals was entered on April 17, 1990.
Petitions for rehearing were denied on June 15, 1990 (Pet. App. 24a).
The petition for a writ of certiorari was filed on August 29, 1990.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTIONS PRESENTED
1. Whether the legality of a Nuclear Regulatory Commission policy
statement may be challenged in court years after the statement's
promulgation because the agency has issued minor amendments to the
statement.
2. Whether the court of appeals should have deferred to the
Commission's interpretation of Section 306 of the Nuclear Waste Policy
Act of 1982, 42 U.S.C. 10226, as permitting the promulgation of policy
guidance, rather than formal rules, regarding the training of power
plant personnel.
STATEMENT
1. Section 306 of the Nuclear Waste Policy Act of 1982, 42 U.S.C.
10226, provides that the Nuclear Regulatory Commission "is authorized
and directed to promulgate regulations, or other appropriate
Commission regulatory guidance" concerning the training and
qualifications of civilian nuclear power-plant operating personnel,
and that such regulations or guidance shall establish "instructional
requirements" for the personnel training programs of civilian nuclear
power plant licensees.
To implement Section 306, the Commission in 1985 issued a policy
statement providing regulatory guidance for the training and
qualifications of nuclear power plant personnel. 50 Fed. Reg. 11,147
(1985); Pet. App. 27a-34a. In its policy statement, the Commission
announced that "regulatory guidance" satisfied "the mandate of the
Nuclear Waste Policy Act," and that it was "deferring rulemaking" on
training and qualifications for a minimum of two years to afford the
nuclear utility industry an opportunity to achieve the goals of
Section 306 without regulations (Pet. App. 28a-29a). The policy
statement endorsed the training accreditation program developed by the
Institute of Nuclear Power Operations (INPO), an industry group
established to assist utilities in improving the quality of the
management and operation of their nuclear facilities (Pet. App. 29a,
30a). In addition, the NRC stated that it would continue to evaluate
the utilities' implementation of the program, and identified a number
of specific actions that it would take to monitor the accreditation
program developed by INPO in order to determine whether further agency
action would be appropriate (Pet. App. 31a-32a).
2. More than a year after the promulgation of this policy
statement, respondent Public Citizen requested the Commission to
"immediately undertake rulemaking (in order) to comply with * * *
Section 306 of Nuclear Waste Policy Act of 1982." 51 Fed. Reg. 17,361
(1986). Without waiting for the agency to rule on the request for
rulemaking, Public Citizen filed suit against the NRC. In that suit,
the court of appeals ruled that Public Citizen's challenge to the 1985
policy statement was too late under either of the potentially
applicable jurisdictional statutes: it was not filed within either
the 180-day time limit of the Nuclear Waste Policy Act of 1982, 42
U.S.C. 10139(c), or the 60-day limit of the Hobbs Administrative
Orders Review Act, 28 U.S.C. 2342(4). Alternatively, the court held
that if the suit were deemed a challenge to the Commission's rejection
of Public Citizen's petition for rulemaking, it was too early.
Accordingly, the case was dismissed. Public Citizen v. NRC, 845 F.2d
1105 (D.C. Cir. 1988).
On February 2, 1987, the Commission unanimously denied the petition
for rulemaking. 52 Fed. Reg. 3121 (1987). The Commission explained
that it had determined "that 'guidance' or 'regulatory guidance'
do(es) not necessarily mean a mandatory, enforceable regulation, order
or license condition." Id. at 3125. Public Citizen did not seek
judicial review of this denial.
3. In 1988, the Commission issued minor amendments to its policy
statement (Pet. App. 35a-39a). /1/ In January 1989, respondents
brought this suit against the Commission, again asserting that the
Commission had failed to comply with Section 306 by refusing to impose
regulations for the training of nuclear power plant personnel. This
time, the court of appeals held that the Commission's decision in 1988
to issue amendments to its policy statement and to keep the policy
statement in force started anew the time for judicial review, on the
theory that the 1988 decision implicitly "raise(d) the lawfulness" of
the original determination to issue a policy statement (Pet. App. 9a).
On the merits, the court of appeals concluded that the issuance of
the 1985 policy statement did not satisfy the Commission's obligations
under Section 306. The court acknowledged that the statute allowed
the NRC "to promulgate regulations, or other appropriate Commission
regulatory guidance." 42 U.S.C. 10226 (emphasis added). The court
concluded, however, that other portions of the statute, particularly
the direction to "establish . . . instructional requirements," showed
that Congress wanted the Commission to issue binding rules (Pet. App.
12a-22a). The court also held (Pet. App. 13a, 23a) that the statute
was so clear that it precluded consideration of the agency's contrary
view, citing Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984).
The court accordingly ordered the agency "to create mandatory
requirements" (Pet. App. 23a).
4. The court of appeals denied petitions for rehearing and
suggestions for rehearing en banc filed by the Commission and by
petitioner, the intervenor below. Pet. App. 24a-26a. Judge Williams,
joined by Judges Silberman, D. H. Ginsburg, and Sentelle, concurred in
the denial of the suggestions for rehearing en banc, but specifically
disagreed with the panel's decision on the merits. He stated that the
decision had "completely shorn" Section 306 of its disjunctive
statutory language directing issuance of regulations or regulatory
guidance. Pet. App. 26a. He explained that he did not call for
rehearing en banc because "the statute appears unique" and "perhaps
more important, it seems * * * not beyond the reach of agency
expertise to devise 'regulations' that preserve most if not all of the
flexibility the Commission sought and, correctly * * * , believes
lawful." Ibid.
DISCUSSION
We agree with petitioner that the court of appeals' view of its
power to consider a challenge to a four-year old NRC policy statement
is incorrect, and defeated reasonable expectations of stability in
this regulatory process. We also fully endorse petitioner's argument
that the decision below incorrectly interpreted Section 306, and
misconstrued Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. at 843, by
failing to give deference to a reasonable statutory construction by
the agency to which Congress has delegated the responsibility for
administering this statute. The federal respondents did not file
their own petition because the Commission expects to follow Judge
Williams' suggestion and "devise 'regulations' that preserve most if
not all of the flexibility" the Commission sought in its policy
statement. Pet. App. 26a. The fact remains, however, that the court
of appeals has erroneously required the NRC to intrude on a highly
effective, industry-developed program by promulgating binding
regulations that the Commission believes are neither necessary as a
matter of policy nor required by law. Therefore, the federal
respondents do not oppose certiorari.
1. The court of appeals' determination that it had subject matter
jurisdiction in this case was incorrect. The court of appeals itself
has held repeatedly that, with rare exceptions, an attack on the
validity of agency action must be made within the statutory review
period. See, e.g., Massachusetts v. ICC, 893 F.2d 1368 (D.C. Cir.
1990); American Iron & Steel Inst. v. EPA, 886 F.2d 390 (D.C. Cir.
1989); Raton Gas Transmission Co. v. FERC, 852 F.2d 612 (D.C. Cir.
1988); National Rifle Ass'n v. Federal Election Comm'n, 854 F.2d 1330
(D.C. Cir. 1988). Here, the statutory review period for a complaint
alleging that the NRC failed to implement Section 306 is established
by one of two potentially applicable jurisdictional statutes: the
Nuclear Waste Policy Act of 1982, which contains a 180-day time limit
(42 U.S.C. 10139(c)), or the Hobbs Administrative Orders Review Act,
which contains a 60-day limit (28 U.S.C. 2342(4)). Both of those time
limits had long since expired when the complaint in this case was
filed. Public Citizen v. NRC, 845 F.2d 1105 (D.C. Cir. 1988).
To overcome this obstacle, the court of appeals found that "the
Commission's 1985 action represented a temporary decision not to
engage in rulemaking on mandatory training standards, and that the
1988 action reexamined this choice and made it permanent" (Pet. App.
7a). This was an incorrect reading of the Commission's action. In
March 1985, in direct response to a congressional directive to issue
regulations or regulatory guidance implementing Section 306, the NRC
adopted the policy statement attacked below. The court of appeals
previously found that announcement sufficiently definitive and final
to trigger the running of the limitations period. Public Citizen v.
NRC, 845 F.2d at 1108. In our view, the court was correct in its
first decision, rather than its second.
Nor did the agency reopen the basic issue in 1988. At that time,
the NRC simply issued three minor amendments to its 1985 policy
statement (see note 1, supra). While the NRC did, at the same time,
observe that its original regulatory choice had proved effective, it
did not even obliquely reconsider the policy statement's lawfulness.
The court of appeals has chosen to disbelieve the agency and to read
far more into the agency's statements than is there. /2/
2. The court of appeals' decision on the merits is also incorrect.
It runs counter to established doctrines of statutory construction and
principles governing judicial review of an agency's interpretation of
its statutory mandates. The court read Section 306 to require the
Commission to promulgate regulations (Pet. App. 22a). But the
operative words of the statutory provision direct the Commission "to
promulgate regulations, or other appropriate Commission regulatory
guidance" (42 U.S.C. 10226 (emphasis added)). This disjunctive
phrasing indicates clearly that Congress contemplated alternative
approaches, and authorized the Commission to adopt an approach other
than issuing regulations. The court of appeals' interpretation -- by
mandating binding rules -- makes the phrase "other appropriate
Commission regulatory guidance" entirely meaningless. /3/ (Emphasis
added.) This is contrary to the two well-established principles of
statutory construction that (1) statutory language must be held to
mean what it plainly expresses (the so-called "plain meaning" rule),
and (2) all of the language of a statute must be given effect. See 2A
N. Singer, Sutherland Statutory Construction Sections 46.01, 46.06
(Sands 4th ed. Supp. 1990).
It is true, as the court of appeals stressed, that Section 306 says
that the "regulations" or "regulatory guidance" must "establish * * *
instructional requirements," but the court was wrong in concluding
that the Commission's "guidance" approach is incompatible with the
"requirements" directive. In fact, the policy statement does
establish "requirements": it sets forth "essential elements" for an
acceptable training program. /4/ The statement is backed by vigorous
Commission oversight of licensee activities and an enforcement policy
leading to enforceable orders or license conditions where training or
qualifications deficiencies exist. In light of the relationship
between the Commission and the regulated industry, this scheme
certainly creates "requirements" in any practical sense. Indeed, the
court of appeals itself in a previous case characterized similar
guidance in a regulatory agency's policy statement as "requirements."
Guardian Fed. Sav. & Loan Ass'n v. FSLIC, 589 F.2d 658, 667 (D.C. Cir.
1978).
The court of appeals' decision entirely ignores the Commission's
frequent and longstanding practice of issuing "(r)egulatory (g)uides,"
not binding in themselves, to the nuclear industry. See Porter County
Chapter of the Isaac Walton League v. AEC, 533 F.2d 1011, 1016 n.5
(7th Cir.), cert. denied, 429 U.S. 945 (1976). It is difficult to
believe that Congress would not have stated that non-binding guidance
was impermissible under Section 306, if Congress desired to eliminate
it as a possible method of implementing the statute. /5/ Instead, as
we have stressed, Congress expressly provided that the NRC could issue
"guidance" as an alternative to regulations.
At bottom, the court of appeals imposed its preferred reading of
Section 306 on the NRC. Indeed, the court virtually acknowledged as
much. It recognized that "'guidance' certainly can mean, in ordinary
parlance, to give advice, or suggestions" (Pet. App. 14a), but viewed
the term "requirements" as "clearer" (Pet. App. 16a). This approach
to statutory construction is fundamentally at odds with the deference
doctrine this Court recognized in Chevron -- which requires courts to
resolve ambiguities in the agency's favor, not to engage in their own
de novo examination of the statute, so long as the agency's statutory
reading is a "permissible" one. 467 U.S. at 843. Accord, Fort
Stewart Schools v. FLRA, 110 S. Ct. 2043, 2046 (1990); K-Mart Corp.
v. Cartier, Inc., 486 U.S. 281, 292 (1988). In this case, whatever
the merits of the court of appeals' own reading of Section 306, the
NRC's contrary reading is, at the least, a "permissible" one.
3. The court of appeals' decision intrudes on a successful training
program that has been the subject of lengthy, in-depth deliberation
and review by the NRC and the expenditure of considerable resources by
the utility industry. Pet. 13 & n.6. In issuing its 1985 policy
statement, the Commission deliberately chose to issue policy guidance
rather than regulations because the nuclear industry had "developed a
training accreditation program which the NRC has found to be an
acceptable means of industry self-improvement in training" (Pet. App.
28a). In amending the policy statement in 1988, the Commission found
that the industry program "is generally an effective program for
ensuring that nuclear power plant personnel have qualifications
commensurate with the performance requirements of their jobs" (Pet.
App. 35a). The NRC remains firmly of the view that the industry
accreditation program has been a success and does not warrant direct
supervision through NRC regulations.
Nonetheless, although in our view the court of appeals has misread
the law, forcing the NRC to devote scarce resources to an area where
an existing program is working well, we have not filed our own
petition for a writ of certiorari. The agency currently is studying
ways to issue regulations on employee training that would disrupt the
successful industry initiative to the minimum degree possible, and is
hopeful that it will be able to comply with the court's mandate while
still preserving most of the policy statement's flexibility. For this
reason, the federal respondents have not themselves sought review in
this Court. Nevertheless, for the reasons we have outlined, we do not
oppose the granting of the instant petition. If the petition is
granted, we will participate in the case in support of petitioner.
CONCLUSION
The federal respondents do not oppose the petition for a writ of
certiorari.
Respectfully submitted.
WILLIAM C. PARLER
General Counsel
JOHN F. CORDES, JR.
Solicitor
E. LEO SLAGGIE
Special Counsel
SUSAN FONNER
Attorney United States Nuclear Regulatory Commission
JOHN G. ROBERTS, JR.
Acting Solicitor General /6/
RICHARD B. STEWART
Assistant Attorney General
PETER R. STEENLAND, JR.
JOHN BRYSON
Attorneys
OCTOBER 1990
/1/ The 1988 amendments made three changes in the policy statement:
(1) NRC monitoring and review were expanded; (2) the enforcement
discretion included in the 1985 policy statement was eliminated; and
(3) minor modifications made by the National Academy for Nuclear
Training to its accreditation program were incorporated. The
statement accompanying the 1988 amendments reflected the Commission's
conclusion "that the (INPO training accreditation) program is
effective in ensuring that personnel have qualifications commensurate
with the performance requirements of their jobs" (Pet. App. 38a, 39a).
/2/ The court relied on agencies' "everpresent duty to insure that
their actions are lawful" (Pet. App. 9a). But if this duty suffices
to permit challenges to established policies, it would eliminate
statutory review periods altogether. The court also suggested in
passing (ibid.) that a claim challenging agency action as violative of
a statute may be raised after a statutory limitations period has
expired by filing a petition for amendment or rescission of the
agency's regulations, and challenging the denial of that petition in
court. Whether or not this avenue for avoiding limitations periods is
available to litigants, respondent Public Citizen filed just such a
petition with the NRC in 1986, but did not seek timely judicial review
of its denial. Public Citizen v. NRC, 845 F.2d 1105 (D.C. Cir. 1988).
The court of appeals did not explain why Public Citizen should have a
second chance.
/3/ The court of appeals rejected any interpretation of Section 306
that would permit the NRC to take any action -- such as the
case-by-case imposition of requirements on particular licensees --
short of the issuance of regulations (Pet. App. 22a).
/4/ The instructional requirements listed in the statement are as
follows (Pet. App. 30a):
. Systematic analysis of the jobs to be performed.
. Learning objectives derived from the analysis which
describe desired performance after training.
. Training design and implementation based on the learning
objectives.
. Evaluation of trainee mastery of the objectives during
training.
. Evaluation and revision of the training based on the
performance of trained personnel in the job setting.
/5/ The court of appeals found support for its view of Section 306
in other statutes requiring agencies to "establish requirements" (Pet.
App. 16a-17a). This Court has recently criticized this method of
statutory construction: Tafflin v. Levitt, 110 S. Ct. 792, 797
(1990), explaining that the "mere borrowing of statutory language does
not imply that Congress also intended to incorporate all of the
baggage that may be attached to the borrowed language" (quoting Lou v.
Belzberg, 834 F.2d 730, 737 (9th Cir. 1987)).
/6/ The Solicitor General is disqualified in this case.